Landmark Supreme Court Case · Freedom of speech
Schenck v. United States (1919)
- Decided
- 1919
- Vote
- 9–0
- Opinion
- Justice Oliver Wendell Holmes Jr.
- Constitutional provisions
Facts of the case
During World War I, Charles Schenck, general secretary of the Socialist Party in Philadelphia, mailed thousands of leaflets to men who had been drafted, urging them to resist the draft, which the leaflets called a form of involuntary servitude. He was convicted under the Espionage Act of 1917.
The constitutional question
Did Schenck's conviction for distributing anti-draft leaflets violate his First Amendment right to free speech?
The decision
No. The Court unanimously upheld the conviction. Speech can be punished when, in the circumstances, it creates a "clear and present danger" of bringing about serious harms that Congress has the right to prevent, especially in wartime.
The Court's reasoning
Holmes wrote that the character of every act depends on the circumstances in which it is done. Speech that might be protected in peacetime could be punished when the nation is at war.
Why it matters
It established that free speech is not absolute and created the "clear and present danger" test. The Court later narrowed the government's power to punish advocacy. In Brandenburg v. Ohio (1969), it held that only speech directed to inciting imminent lawless action, and likely to produce it, may be punished. See limits on rights.
In the Court's words
The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.
Justice Oliver Wendell Holmes Jr., majority opinion